FEDERAL COURT OF AUSTRALIA

Maioha v Minister for Immigration and Border Protection [2018] FCA 1016

ORDERS

THE COURT ORDERS THAT:

1.    The application is allowed.

2.    A writ of certiorari to issue quashing the decision of the respondent dated 17 July 2017.

3.    A writ of mandamus to issue requiring the respondent to re-determine according to law the application by the applicant to revoke the cancellation of her Class TY Subclass 444 Special Category (Temporary) visa.

4.    The respondent is to pay the applicant’s costs of the proceeding, as agreed or assessed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

PERRY J:

1.    INTRODUCTION

1    The applicant is 39 years of age and a citizen of New Zealand. She arrived in Australia on 3 September 1988 at the age of nine. Aside from two short trips away from Australia in 1992 and 1997, she has not spent any time outside Australia.

2    Following her most recent conviction for offences including burglary and contravening domestic violence orders in the District Court of Queensland in February 2017, the applicant was notified of a decision to cancel her Class TY Subclass 444 Special Category (Temporary) visa (visa) under subs 501(3A) of the Migration Act 1958 (Cth) (the Act) on character grounds (the cancellation decision). Shortly after that decision was made, the applicant was taken into immigration detention where she has remained.

3    The Assistant Minister (the Minister) decided not to revoke the cancellation decision on 17 July 2017 (the non-revocation decision). Subject to proof to the contrary, ss 19 and 19A of the Acts Interpretation Act 1901 (Cth) apply so that the Assistant Minister is treated as the Minister for the purposes of administering the Act: Tusitala v Assistant Minister for Immigration and Border Protection [2015] FCA 1188 at [2].

4    The applicant initially sought judicial review of the non-revocation decision on the following grounds:

(1)    there was no evidence before the Minister to sustain his finding that New Zealand had a healthcare system with a similar standard to the Australian healthcare system (Ground 1);

(2)    the Minister failed to consider a representation by the applicant about her lack of any employment history and her capacity to find work in New Zealand (the employment representation claim) (Ground 2), particulars of which were that:

(a)    the applicant had represented that she had not worked since leaving school but instead raised six children;

(b)    the applicant’s employment prospects were relevant to the Minister’s decision, particularly the extent of impediments she would face if removed from Australia to New Zealand; and

(c)    this representation was not considered by the Minister at [43]-[49] or elsewhere in his reasons for decision, contrary to s 501CA(4)(a) of the Act;

(3)    the Minister failed to consider that the applicant was a victim of domestic violence and thus a victim of gender-based violence against women and this provided an independent basis for revoking the cancellation decision (the domestic violence victim claim) (Ground 3); and/or

(4)    the decision was illogical, irrational, and unreasonable because an assessment of a risk of low offending could not support a finding that the applicant represented an unacceptable risk of harm to the Australian community (Ground 4).

5    By a further amended originating application filed with leave granted on 1 December 2017, the applicant added the following alternative ground (Ground 6):

The applicant made a representation to the [Minister] that, if the visa cancellation was not revoked and she was required to return to New Zealand, she would have nowhere to live and no money. The [Minister] failed to properly deal with this representation in a manner which resulted in the decision of the [Minister] being infected by jurisdictional error.

Particulars

a)    The [Minister] failed to make a finding which addressed the applicant’s core point that she would have nowhere to live and no money.

b)    The [Minister] did not give proper, genuine and realistic consideration to the representation.

c)    The [Minister], in response to the representation, found that the hardship the applicant may suffer “will not be insurmountable”. However, this finding was unsupported by probative material. There was no evidence or material before the [Minister] or to which the [Minister] referred in his decision which explained how the applicant may surmount the hardship the subject of the representation. As a result, the decision of the [Minister] was legally unreasonable.

6    For convenience, the representations in Ground 6 are referred to throughout this judgment as the basic living standards representations. I note that the Minister initially submitted that even if Ground 6 were established, no relief should issue in the exercise of discretion on the ground that it would be futile. However, this submission was withdrawn at the hearing on 15 February 2018.

7    I also note for completeness that, by Ground 5, the applicant initially also alleged that subs 501(3A) of the Act was invalid. However, the applicant withdrew that ground following the decision by the High Court in Falzon v Minister for Immigration and Border Protection [2018] HCA 2; (2018) 92 ALJR 201 upholding the validity of s 501(3A) of the Act.

8    For the reasons given below, the applicant has established that the non-revocation decision is invalid by reason of the jurisdictional error advanced in Ground 6. It is therefore unnecessary to consider the other grounds of judicial review. However, I note, without deciding, that there was some force in the ground that the Minister fell into jurisdictional error as alleged in Ground 3 in failing to consider the applicant’s representations that she was a victim of domestic violence, not merely a perpetrator, as a potentially mitigating factor going to her character and likelihood of reoffending. The application must therefore be allowed.

2.    EVIDENCE

9    The documents evidencing the Minister’s decision and material on which it was based were contained in the Court Book (CB) (exhibit R-1). The applicant also relied upon exhibit A-1, being a printout from the website for the New Zealand Ministry of Social Development. That document showed the number of applicants on the Housing Register as at 30 September 2017. This showed that there were 5844 applicants who had been assessed as eligible for social housing but who had not yet been provided with social housing. This represented an increase of 27% from the previous year. The affidavit of the applicant affirmed on 27 October 2017 was received as submission only.

10    The Minister relied upon the affidavit of Ada Oi-Yee Wong, solicitor, affirmed on 15 December 2017, save that paragraph 4 (and annexure AW-1) of that affidavit was not read. Subject to certain concessions (as I explain), the remaining annexures were not received for hearsay purposes, i.e., as evidence of the truth of the matters asserted therein. Annexures AW-2 to AW-5 comprise pages from New Zealand government websites which contain information about criteria for eligibility for social welfare benefits including accommodation supplement payments to assist with rent and other essential housing costs, social housing, and Jobseeker Support including for New Zealand returnees. There was no dispute as to the authenticity of the documents at AW-2 to AW-5 or that they contained representations by the New Zealand government as to its social security system. Nor was there any issue as to the criteria for the Jobseeker Support allowance as represented in AW-3 to AW-5 from the website for the Ministry of Social Development. AW-6 comprises an extract from the Social Security Act 1964 (NZ) (as at 14 July 2017), and was received as evidence of a foreign law pursuant to s 174 of the Evidence Act 1995 (Cth). This evidence was also not in dispute.

3.    BACKGROUND

3.1    The applicant

11    As earlier mentioned, the applicant arrived in Australia aged nine in 1988. She had held a visa since 28 April 1997. She completed high school to year 10 and, at the age of sixteen, commenced a de facto relationship with her former partner after falling pregnant with the first of their six children, four of whom are still minors (Minister’s reasons at [14] and [25]). The children were removed from the applicant’s care in December 2015, and were placed in the authorised care of Ms Maioha’s mother and sister under the authority of Child Safety Services from 21 January 2016 until 12 April 2018. No evidence is before the Court as to the minor children’s current placement. Prior to Ms Maioha’s incarceration, she saw them fortnightly in supervised contact (Minister’s reasons at [15]).

3.2    The cancellation decision and material before the Minister on the non-revocation decision

12    The applicant’s visa was automatically cancelled on 15 February 2017 by force of subs 501(3A) of the Act by reason of the applicant having been sentenced to a term of imprisonment of 12 months or more: subss 501(6)(a) and 501(7)(c). She was taken into immigration detention on 23 February 2017 when she was released from criminal custody. On 28 February 2017, the applicant requested revocation of the mandatory cancellation decision. The Minister was provided with a detailed submission prepared by the Department (the Ministerial Submission) which, among other things, summarised the applicant’s submissions and evidence provided on behalf of the applicant, and annexed that material. It also included a letter addressed to the Minister and the Secretary of the Department of Immigration and Border Protection from the father and brother of the applicant’s former de facto partner requesting consideration of the cancellation of the applicant’s visa and giving reasons in support of cancellation (the cancellation request). The material annexed to the Ministerial Submission also included: the sentencing remarks on 10 February 2017 by Magistrate Pink for the applicant’s conviction on pleas of guilty for failing to appear, breach of bail conditions, breach of domestic violence orders and probation, burglary and an indictable offence, and unlawful possession of a motor vehicle; the sentencing remarks of Dearden J on 21 October 2016; and the sentencing remarks of Rackemann J on 25 October 2007 with respect to the applicant’s convictions on pleas of guilty of one count of assault occasioning bodily harm, wilful damage, and two summary matters involving breach of domestic violence orders.

3.3    The non-revocation decision

13    By letter dated 17 July 2017, the Minister notified Ms Maioha of his decision made on the same day not to revoke the visa cancellation decision. The letter attached the decision record, together with a statement of reasons for the decision. The Minister found that Ms Maioha did not dispute the information regarding her criminal convictions and sentences or that she did not pass the statutory character test (Minister’s reasons at [8]). The Minister therefore considered whether, in light of the applicant’s representations, he was satisfied that there was another reason why the cancellation decision should be revoked. These representations and the Minister’s consideration of them may be summarised as follows.

(1)    The Minister accepted that the applicant has a close relationship with her children and that it is important for their future development to maintain this relationship. As such, the Minister found that the interests of the applicant’s minor children would be best served by the revocation of the cancellation of her visa so that they may have the opportunity to further develop a relationship with their mother, including spending time with her and being supported and parented by her in the future (Minister’s reasons at [29]). However the Minister noted that the applicant’s “capacity to support and care for her children, and to be a positive influence on them, is heavily dependent on her ability to give up drug use and avoid further criminal offending and incarceration. As I have found below, I have some reservations about this. It [sic] she reoffends, her value to her children will be much reduced.” (Minister’s reasons at [30]).

(2)    With respect to the expectations of the Australian community, the Minister referred to the applicant’s submission that the community would exercise leniency and compassion to assist the applicant with her rehabilitation efforts so as to avoid “destroying her life and that of her children”. However, the Minister considered that the Australian community would expect non-citizens to obey Australian laws and that the applicant “has breached this trust as she has been convicted of offences in Australia” (Minister’s reasons at [32]).

(3)    The Minister accepted that the applicant’s six children, her parents, and her sister would experience emotional hardship if the decision were not revoked, and that her sister and parents would also experience practical hardship and continued stress and pressure in continuing to care for her six children. In addition, the Minister found that the applicant had been almost entirely educated in Australia and had formed significant ties as a result, and accepted that the applicant’s friends would experience emotional detriment (Minister’s reasons at [40] – [42]).

(4)    With respect to the extended impediments that the applicant will face if removed from Australia to New Zealand “in establishing herself and maintaining basic living standards”, the Minister concluded that the “hardships will not be insurmountable in light of New Zealand’s similar culture, language and health system standards”: Minister’s reason’s at [43] and [49] and see further below at [31].

(5)    With respect to protecting the Australian community, the Minister found that “[v]iewed in totality, Ms MAIOHA’s record can only be described as poor” and her offending as “serious” (Minister’s reasons at [61] and [62]). Furthermore with respect to the risk to the Australian community, the Minister found:

80. I take into consideration the submission of Ms MAIOHA’s legal representative that the nature of Ms MAIOHA’s crimes were ‘not abhorrent’ and the impact on the victim was not significantly harmful to justify reversing the revocation request. It is conceded that Ms MAIOHA has ‘a relatively long history’ of domestic violence related offences, these were committed in the context of her long-standing relationship to her former partner. It is submitted that Ms MAIOHA is not a threat to the community at large. I accept that Ms MAIOHA has no intention to return to that ‘volatile relationship’. However, I note that some elements of her criminal history took place outside the context of that relationship.

81. I note the prevalence of breaches of domestic violence orders, bail undertakings and judicial orders in Ms MAIOHA’s record. Her historical response to judicial leniency and conditions placed upon her behaviour is not encouraging in terms of accepting contemporary claims of rehabilitation and future lawfulness.

82. In considering overall the likelihood of Ms MAIOHA reoffending, I take into account her remorse and progress towards rehabilitation, that she has the support from her family, the salutary effects of her imprisonment and visa cancellation. Notwithstanding, I also consider Ms MAIOHA’s offending in Australia has been consistent over more than 15 years, and spans over the period up to her recent incarceration. Ms MAIOHA has a history of substance abuse and her history of recidivism including breaching judicial orders.

83. Although I note her recent efforts of rehabilitation, I consider Ms MAIOHA’s ability to refrain from offending remains untested in an unsupervised capacity. In light of this, her sustained offending over a period of more than 15 years, her poor historical response to legal boundaries in terms of bail and domestic violence orders, I find there remains a likelihood, albeit low, that Ms MAIOHA will reoffend.

84. I find that should Ms MAIOHA reoffend with further violent offences, it may result in physical or psychological damage to a member or members of the Australian community.

(6)    The Minister concluded that:

91. In reaching my decision about whether I am satisfied that there is another reason why the original decision should be revoked, I concluded that Ms MAIOHA represents an unacceptable risk of harm to the Australian community and that the protection of the Australian community outweighed the best interests of her children as a primary consideration, and any other considerations as described above. These include her lengthy residence and bonds and the hardship Ms MAIOHA, her family and social networks will endure in the event the original decision is not revoked.

14    As a result, the Minister was not satisfied that there was another reason why the cancellation decision should be revoked (Minister’s reasons at [92]).

4.    STATUTORY FRAMEWORK

15    Subsection 501(3A) of the Act provides for automatic cancellation of a visa in certain circumstances where a person does not pass the character test. That section reads:

(3A)    The Minister must cancel a visa that has been granted to a person if:

(a)    the Minister is satisfied that the person does not pass the character test because of the operation of:

(i)    paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c); …

and

(b)    the person is serving a sentence of imprisonment, on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory.

16    A “substantial criminal record” for the purposes of subs 501(6)(a) is defined in subs 501(7) to include cases where the person has been sentenced to a term of imprisonment of 12 months or more.

17    By reason of the use of the word “must”, it is apparent that the Minister has no discretion and is required to cancel the visa if satisfied that the criteria in subs 501(3A) are met. Consistently with this, by virtue of subs 501(5), there is no requirement for the Minister to afford a visa holder an opportunity to be heard before cancelling her or his visa where subs 501(3A) is engaged.

18    After cancellation the visa holder is afforded an opportunity to be heard on whether the cancellation decision should be revoked. If the person makes representations as to why the decision should be revoked, the Minister has a discretion under subs 501CA(4)(b)(ii) to revoke the visa cancellation decision, even if the Minister remains satisfied that the person does not satisfy the character test. Thus, subs 501CA(3) requires the Minister as soon as practicable, to give the person a written notice setting out the cancellation decision and particulars of the “relevant information”, together with an invitation to make representations about revocation. “Relevant information” is defined in subs 501CA(2) as:

….information (other than non-disclosable information) that the Minister considers:

(a)    would be the reason, or a part of the reason, for making the original decision; and

(b)    is specifically about the person or another person and is not just about a class of persons of which the person or other person is a member.

(I note that I have elsewhere commented on the inaptness of requiring the Minister to give relevant information in the sense of information that “would be the reason” for the cancellation decision in circumstances where the Minister has already made that decision, and by subs 501CA(2)(b), transposing restrictions explicable in other contexts under the Act to revocation applications for automatic cancellation: Roach v Minister for Immigration and Border Protection [2016] FCA 750 at [26]-[27].)

19    The power to revoke the cancellation decision is conferred by subs 501CA(4) which provides that:

(4)    The Minister may revoke the original decision if:

(a)    the person makes representations in accordance with the invitation; and

(b)    the Minister is satisfied:

(i)    that the person passes the character test (as defined by section 501); or

(ii)    that there is another reason why the original decision should be revoked.

20    Where the cancellation decision is revoked, subs 501CA(5) provides that the cancellation decision is taken not to have been made.

21    The Minister’s discretion under subs 501CA(4)(b)(ii) to revoke a cancellation decision is a broad one, requiring only that the Minister be “satisfied that there is another reason why the decision should be revoked”. As such, in the exercise of that discretion the Minister may have regard to factors such as the impact that cancellation of the visa may have upon the individual concerned, her or his family, and the Australian community: BCR16 v Minister for Immigration and Border Protection [2017] FCAFC 96 at [24] (Bromberg and Mortimer JJ). The applicant submitted that considerations of this nature are also reflected in Direction No. 65 (the purpose of which is to guide decision-makers performing functions or exercising power under s 501) which, while not binding under s 499 of the Act upon the Minister when (as here) she or he makes the decision personally, may nonetheless be taken into account.

22    Finally, the Minister’s decision not to revoke the cancellation decision is not subject to merits review by the Administrative Appeals Tribunal or otherwise (subs 501CA(7) of the Act). The only avenue of challenge is, therefore, by judicial review of the legality of the Minister’s decision.

23    In this regard, it is important to emphasise that the Court’s jurisdiction on judicial review is limited to deciding whether the Minister’s decision was made lawfully under the Act, that is, whether the Minister’s non-revocation decision is invalid by reason of a jurisdictional error. The Minister would make a jurisdictional error if, for example, she or he failed to consider a mandatory relevant consideration such as the risk of harm to community posed by the applicant, or failed to give the applicant an opportunity to be heard on whether the cancellation decision should be revoked: Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323 (Yusuf) at [82] (McHugh, Gummow and Hayne JJ); Craig v South Australia (1995) 184 CLR 163 at 179 (the Court). However, the Court does not have jurisdiction to decide for itself whether or not the Minister’s decision not to revoke the cancellation decision is the correct or preferable decision: Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220 at [65] (Sackville J), [146] (Kenny J); Re Minister for Immigration and Multicultural Affairs; ex parte Applicant S20/2002 [2003] HCA 30; (2003) 77 ALJR 1165 at [114] (Kirby J). As such, the question is not whether this Court agrees with the Minister’s non-revocation decision or considers it unduly harsh, but only whether the Minister’s decision is tainted with a legal error such that no valid decision has been made.

5.    DISPOSITION OF THE APPLICATION

5.1    Relevant principles

24    First, it is incumbent upon a decision-maker to give a proper, genuine, and realistic consideration to those matters which are required to be taken into account. As Flick J, for example, explained in Islam v Cash [2015] FCA 815; (2015) 148 ALD 132 (Islam v Cash):

14. … Mere advertence to a consideration, it is accepted, without any analysis may not be sufficient: Elias v Commissioner of Taxation [2002] FCA 845 at [62], (2002) 123 FCR 499 at 512. For a consideration to be properly taken into account, a decision-maker must give more than mere “lip service” to a relevant consideration: Anderson v Director-General of the Department of Environment and Climate Change [2008] NSWCA 337 at [58], (2008) 251 ALR 633 at 651 per Tobias JA (Spigelman CJ and Macfarlan JA agreeing). There must be “proper, genuine and realistic” consideration of those matters that are required to be taken into account: Williams v Minister for the Environment and Heritage [2003] FCA 535 at [29] to [30], (2003) 74 ALD 124 at 130. Wilcox J there cited with approval the following observations of Gummow J in Khan v Minister for Immigration and Ethnic Affairs (1987) 14 ALD 291:

“[W]hat was required of the decision maker … was that in considering all relevant material placed before him, he give proper, genuine and realistic consideration to the merits of the case and be ready in a proper case to depart from any applicable policy ... The assertion by a decision maker that he has acted in this fashion will not necessarily conclude the matter; the question will remain whether the merits have been given consideration in any real sense ...”

See also e.g. Ayoub v Minister for Immigration and Border Protection [2015] FCAFC 83; (2015) 231 FCR 513 at [23] (the Court); and WZAQU v Minister for Immigration and Citizenship [2013] FCA 327; (2013) 233 FCR 534 (WZAQU) at [12] (Flick J).

25    Similarly, in Lafu v Minister for Immigration and Citizenship [2009] FCAFC 140; (2009) 112 ALD 1 at [48]-[49], the Full Court referred to the need for there to be “an active intellectual engagement” with the consideration in question and explained that a party should not be “left to guess” what role, if any, that consideration had played in the decision. For example, an administrative decision-maker may fall into jurisdictional error by failing to engage with the substance of an applicant’s submission if it merely records that a “submission” has been made and leaves unstated how the submission was resolved: MZYPW v Minister for Immigration and Citizenship [2012] FCAFC 99; (2012) 289 ALR 541 at [19]-[20] (Flick and Jagot JJ) and at [38] (Yates J). This is not to deny that caution should be exercised before determining that there has been a failure by a decision-maker to undertake a proper, genuine, or realistic consideration: see e.g. Minister for Immigration and Citizenship v SZJSS [2010] HCA 48; (2010) 243 CLR 164 at [34]-[36] (the Court); Minister for Immigration and Multicultural Affairs v Anthonypillai [2001] FCA 274; (2001) 106 FCR 426 at [60] to [64] (the Court); Belmorgan Property Development Pty Ltd v GPT Re Ltd [2007] NSWCA 171; (2007); 153 LGERA 450 at [76] (Basten JA).

26    Secondly, while it is the reality of the consideration and not the mere appearance which matters, the question of whether there has been a real, as opposed to a purported, exercise of the statutory power is to be considered by reference to the reasons for decision: WZAQU at [12]-[13] (Flick J).

27    Thirdly, where a decision-maker gives reasons and makes no finding on a matter in her or his reasons, it may be open to infer that the matter was not regarded as material to the decision. In this regard, the Minister referred to the statement by McHugh, Gummow and Hayne JJ in Yusuf in the context of s 430 of the Act (which obliges the Tribunal to set out its findings on material questions of fact):

69. … It ensures that a person who is dissatisfied with the result at which the Tribunal has arrived can identify with certainty what reasons the Tribunal had for reaching its conclusion and what facts it considered material to that conclusion. Similarly, a court which is asked to review the decision is able to identify the Tribunal’s reasons and the findings it made in reaching that conclusion. The provision entitles a court to infer that any matter not mentioned in the s 430 statement was not considered by the Tribunal to be material. This may reveal some basis for judicial review …. It may reveal jurisdictional error. The Tribunal’s identification of what it considered to be the material questions of fact may demonstrate that it took into account some irrelevant consideration or that it did not take into account some relevant consideration.

(italics in original)

28    Equally, in the present context, in making a decision not to revoke the cancellation under s 501CA it was not in dispute that the Minister is required to set out her or his findings on material questions of fact and to refer to the evidence on which the findings were based: see s 501G(1) of the Act and s 25D of the Acts Interpretation Act 1901 (Cth). As such, the reasoning in Yusuf at [69] applies by analogy to the Minister’s decision in this case.

5.2    Alleged failure to consider the basic living standards representation (Ground 6)

5.2.1    The basic living standards representations

29    The representations made by the applicant pursuant to the invitation under subs 501CA(4) squarely raised the hardship that she considered she would face if returned to New Zealand, by reason of her financial circumstances and in terms of finding accommodation, as one of the core reasons why she argued for a favourable exercise of the discretion in s 501CA. Thus, in her request for revocation, the applicant responded to the question of whether she had any concerns or fears about what would happen to her on return to her country of citizenship, that “I will have nowhere to live no money and I’m scared I won’t see my children for a long time”. Similarly, in answer to the question “Are there any other problems you would face if you have to return to your country of citizenship?”, the applicant wrote “re-establishing myself is a concern as I have no friends or other support as I have not seen other family members for over 20 years and my children are my main priority and I would have nowhere to live or no money”. The applicant also attended an interview on 1 March 2017 with a Departmental officer. In response to a question seeking details of her employment history over the past 12 months, the officer recorded that the applicant had “not worked in last 12 months”. Further, in response to questions asked of her financial circumstances, the officer recorded her response that she had no assets, debts of $1000, and no easily accessible assets and money overseas. Again in answer to the question whether she had any reasons why she could not return to her country of nationality the officer recorded:

Nowhere to live

Don’t know family there

All my children are here.

30    The applicant and her parents also said that she had had a period of homelessness between December 2015 to December 2016 and this is referred to expressly in the Ministerial Submission in relation to rehabilitation and mitigating circumstances. Added to this was the Minister’s awareness of the applicant’s mental health issues (which were detailed in the Ministerial Submission), both factors which may plainly impact on her capacity to cope if returned to New Zealand and to find paid employment. The applicant’s mother also wrote that while the applicant had part-time work whilst at school, the applicant did not work while raising the children; her partner was the provider. The father and brother of the applicant’s former de facto partner also stated in their cancellation request to the Department that the applicant “has never been gainfully employed, worked (for remuneration or otherwise)” but had received unemployment benefits from the time the de facto relationship commenced, that is, when she was 16 years of age.

5.2.2    The Minister’s alleged consideration of the basic living standards representations

31    The Minister addressed the “impediments if removed” in the exercise of his discretion in the following passages:

44. Ms MAIOHA is 38 years old. She has indicated that she suffers from depression and has a history of drug abuse. Ms MAIOHA currently takes medication for depression. Should treatment continue to be required I find New Zealand has a comparable health system to that in Australia, should she need access to such.

45. Ms MAIOHA states that she is fearful that she will suffer hardship if returned to New Zealand due to leaving her parents, sister and six children behind. She states that her children are her life. She also states that she would have nowhere to live and no money.

46. [Her 21 year old son] writes that he fears for his mother’s ‘safety, well-being and mental health if she was not to have the support she has had here’. He states that there is no one in New Zealand that will help his mother rehabilitate and ‘get herself back together’.

47. I note that Ms MAIOHA submits that she has no close family in New Zealand. I accept that Ms MAIOHA has an ‘estranged’ brother who would not be able to assist her due to his own circumstances and who plans to return to Australia in December 2017.

48. I find that Ms MAIOHA will experience significant emotional hardship, due to leaving her children behind in Australia. Further, she will undergo a period of adjustment due to her absence from New Zealand of over 28 years, as well as the practical changes to her life, such as accommodation and other familial and social networks.

49. I find such hardships will not be insurmountable in light of New Zealand’s similar culture, language and health system standards.

5.2.3    Jurisdictional error is established

32    In my view, these passages fail to engage in an active intellectual way with the applicant’s submissions as to her financial situation and accommodation and in failing to do so, the Minister fell into jurisdictional error.

33    First, in deciding whether there is another reason why the cancellation decision should be revoked under subs 501CA(4(b)(ii), the Minister is required to consider any representations the applicant elects to make pursuant to subs 501(4)(a) of the Act “if in making representations, the applicant provided information to the Minister… and that information was critical and relevant to the applicant’s case”: Goundar v Minister for Immigration and Border Protection [2016] FCA 1203 at [55] (Robertson J). As the applicant submits, the basic living standards representations were a core aspect of the representations made by the applicant in favour of revocation. I also agree that it was critical and relevant to her case. In this regard, not only had the applicant given specific evidence as to her financial circumstances at the interview with the Departmental officer, including her lack of assets, but the cancellation request itself referred to the fact that she had never been employed and had been in receipt of welfare payments for all of her adult life. Moreover, the Minister found at [40] that the applicant had completed high school only up to the tenth grade, accepted that she was taking medication for depression (at [44]), and accepted that her estranged brother in New Zealand would not be able to assist her (at [47). These factors no doubt would compound her financial difficulties. Furthermore, the Minister apparently accepted that the applicant was homeless from approximately December 2015 to December 2016 (at [65]). That being so, it cannot be said that the applicant’s representations as to her financial position and fears of having nowhere to live if returned to New Zealand rose no higher than bare assertions and were not critical and relevant to her case.

34    Secondly, that being so, the Minister was required to give the basic living standards representations a proper, genuine and realistic consideration. Whether the Minister has done so is a question of fact determined by reference to the Minister’s reasons in line with the principles earlier referred to. However, while there is a reference at [45] to the fact that the applicant “states that she would have nowhere to live and no money”, how that submission is resolved is left unstated. In this regard, the Minister finds at [49] that such hardships will not be insurmountable “in light of New Zealand’s similar culture, language and health system standards”. However, as the applicant submits, none of these three matters - culture, language and health standards - addresses or responds to the basic living standards representations or explains why the hardship claimed by the applicant in those respects would not be insurmountable. Nor is any light cast upon the Minister’s reasoning in this regard by the bare assertion at [48] of the reasons that the applicant “will undergo a period of adjustment due to her absence from New Zealand of over 28 years, as well as the practical changes to her life, such as accommodation”. Not only does the statement not address her financial concerns, but it is unilluminating as to how the Minister considered (if at all) that she would be able to manage those practical changes. It follows in my view that the finding by Flick J in WZAQU at [29] is equally apt to describe the Minister’s reasons on this issue in the present case:

29. … Ambiguity in reasons provided may not be sufficient to expose legal error. But the cursory manner in which the [decision-maker] summarily dismissed the claims being made, together with a lack of certainty as to what was in fact being resolved, leaves inescapable the conclusion that no proper and genuine consideration was given to the claims and materials sought to be relied upon.

35    Against this, the Minister submitted that he had considered the claim but that it could be inferred from his failure to address the matter in his reasons that he found that it was not material (relying upon King v Minister for Immigration and Border Protection [2014] FCA 766; (2014) 142 ALD 305 at [44] (Flick J) and Cotterill v Minister for Immigration and Border Protection [2016] FCAFC 61; (2016) 240 FCR 29 at [121] (Kenny and Perry JJ)). However, even if it can be inferred that the Minister did not consider the basic living standards representation to be material, the question then arises as to whether the Minister fell into jurisdictional error in so finding (see Yusuf at [27] above).

36    In this regard, the Minister submitted that there could be no error on the ground that “objectively, the claim that [the applicant] would be homeless and without money … was not material … [b]ecause, objectively, the welfare system is the same.” In the Minister’s submission, there is no doubt that the applicant’s fears are without any basis in reality given that:

(1)    it is a matter of common knowledge that New Zealand is a first world country with a functioning welfare system (referring to s 144 of the Evidence Act 1995 (Cth));

(2)    the onus lay upon the applicant to show that this was a critical issue and that she would not have money or housing in New Zealand; and

(3)    the evidence in Ms Wong’s affidavit affirmed 15 December 2017 sets out “the incontrovertible facts” that the applicant will have access to welfare benefits, can access social housing if she cannot find private housing on her welfare or other income, and that the Australian government makes interim support arrangements for persons who have been deported.

37    The third proposition can be shortly dealt with. It is, with respect, an invitation to this Court to embark upon impermissible merits review having regard to material which was not even before the Minister. Furthermore, for the reasons earlier given at [33], I have already rejected the second proposition. In support of the first proposition, the Minister drew an analogy with the decision in Uelese v Minister for Immigration and Border Protection [2016] FCA 348; (2016) 248 FCR 296 (Uelese). In that case, the applicant contended that the Tribunal found without any evidence that, at least in New Zealand, the applicant would have access to government benefits similar to those available to him in Australia (Uelese at [28]). That ground was dismissed by Robertson J for the following reasons:

68. When addressing the extent of impediments if the applicant were removed, the Tribunal noted that there was no specific evidence of any social, medical and/or economic support available to Mr Uelese in either New Zealand or Samoa, but said: “I take into account that at least in New Zealand Mr Uelese would have access to government benefits similar to those available to him in Australia”.

69. In my opinion, that statement is no more than a broad proposition as to the availability of government benefits in New Zealand and not one that required evidence as to the amount of the benefit, the terms and conditions of that benefit or the eligibility criteria for that benefit. The applicant did not put forward to the Tribunal that the non-availability of welfare benefits constituted an impediment which he may face if removed from Australia. I also note that the applicant before me has not put forward any material which suggests that the Tribunal was mistaken in its statement. In any event, I am not satisfied that, in the circumstances, the Tribunal’s statement could constitute jurisdictional error.

38    In my view, the decision in Uelese is distinguishable on the facts. In that case, the Tribunal had found that Mr Uelese was young and in good health, did not face any substantial language or cultural barriers, and conceded that the availability of welfare benefits formed no part of his case (Uelese at [24] and [44]). In such a case, no doubt it was sufficient for the Tribunal simply to rely, in effect, on “a broad proposition” as to the level of government benefits to which Mr Uelese would have access, if returned to New Zealand, as Robertson J held. In the present case, however, Ms Moiha raised concerns about how she would live and how she would find accommodation if returned, against a complex background of disadvantage relevant to those concerns and a history which included a recent period of homelessness. It follows that in this case it was not sufficient for the Minister merely to assume (if in fact he did) as a “broad proposition” that Ms Moiha would have equivalent access to government benefits if returned to New Zealand and that this would suffice to give a proper, genuine and realistic consideration to her basic living standards representations.

6.    CONCLUSION

39    It follows that the application must be allowed with costs.

Associate:

Dated: 6 July 2018